Higher Education

Following a intricate ‍Supreme Court ruling in late August, the fate of billions of dollars of science research grants is now at the mercy of‌ an obscure federal law ⁢known as the Tucker Act.

“I had never spent more⁢ than three minutes in class even mentioning the existence of the Tucker Act, and it would never have ⁢occurred to me to do so before this spring,” said David Marcus, a UCLA professor‍ of law who specializes⁤ in civil ‌procedure and ⁣federal courts.

The⁣ Tucker Act created the modern version of ​the Court ​of Federal Claims, in existence since before the ​Civil War. Until​ recently ⁤it was the venue‌ for contract disputes with ‌the federal government — think:⁣ a company hired to build ​a‌ bridge sues ⁣Uncle Sam over missed pay.

But starting with a surprise,terse order in April followed by a zigzagging set of decisions last month that are stumping lawyers, the Supreme ⁤Court basically declared that this little-known ‌court is now the venue for any university or state that⁢ wants to ​dispute the Trump administration’s cancellation of research grants.

The Supreme Court’s April​ ruling stated that ⁣grant⁣ disputes should be ​hashed out in the Court of Federal⁣ Claims. The ruling came in ⁤a ‌case ⁣in which California⁢ and other states sought to recover tens of millions of‍ dollars in‍ education⁢ funding.

Then came ​the⁣ high court’s fractured August⁣ ruling, which saw two slim majority rulings in the same case. One was a 5-4⁤ decision siding with Trump that said grant funding has to be‍ settled at the Court‌ of Federal Claims rather than in a traditional​ district court. The⁣ decision could help‍ the⁤ Trump administration because it likely requires plaintiffs to seek the ‍restoration of ⁣their funding in ‌the Court ‌of‌ Federal Claims ​and then challenge the legality​ of the policy behind the grant cancellations ​in a⁤ district court — in effect extra work for researchers and campuses ⁢seeking ⁤their funding‍ back.

But the other 5-4 decision‌ benefitted⁣ research universities⁢ by indicating that the⁢ new ⁢federal rules prompting the‍ grant cuts where probably illegal,⁤ partially upholding a ​lower court judge’s order. The case ⁢will now proceed in the lower⁣ courts.

The ambiguity⁣ of the “tricky, ⁢complicated‌ ruling,” as one⁢ legal ‌scholar called it,prolongs the despair of⁢ thousands of researchers and⁣ graduate ‌students ⁣whose life’s work — and a key source of staff income — either remains defunded⁣ or is now at risk of‍ being once again terminated.

Many of the grants were terminated because they ran afoul of Trump’s January executive orders banning so-called Diversity,Equity,and Inclusion initiatives.

“It’s entirely foreign to me” ⁢that the Court of ⁣Federal Claims is “now the‍ place to handle these sort of basic, fundamental questions about the government’s power to ‍handle appropriations,” Marcus said.

It’s​ not clear if existing⁤ grants ​that were cancelled and then reinstated, such as the hundreds at the National ​Institutes of Health,will again be ‌defunded. The University of California is ⁤the recipient of ‍hundreds of these health science grants.Nationally, the grants paid ‍for⁤ research into life-saving drugs, dementia, heart disease in rural⁣ areas, robotics education ​and a whole‌ gamut ‍of⁢ science⁢ inquiries.

But ‍even‍ before​ the court’s‌ August ruling, the ⁢UC​ was ⁤warning of major slowdowns to its research apparatus. ⁢The grant terminations and other funding cuts “have already disrupted⁣ the entire biotech research ecosystem‌ at the University of ⁤california,” ⁤Theresa A. Maldonado,⁣ UC’s vice president for research​ and innovation, told a state legislative​ hearing‌ in August.In 2024, California ‍programs won more ⁤than $5 ‍billion⁢ in grants from⁢ the NIH and⁣ over $1 billion from the National Science⁤ Foundation, she told lawmakers. More than 1,000 startups have been ‍founded based ⁣on UC patents, she ⁤added.

CalMatters reached out to ⁤the University of California and California ⁢Department of Justice about how they interpret the Supreme​ Court’s split decision and the role of the Court‌ of Federal Claims. California’s attorney general is part of a⁤ multistate suit at⁣ the center of the⁢ supreme ‍Court’s August ruling. Both agencies are studying ⁤the implications ‍of the ruling, spokespersons for each agency said.

“Cuts to NIH funding risk derailing vital discoveries, disrupting‌ research teams, and undermining economic ⁣growth in California and across the contry,” UC⁣ spokesperson Stett Holbrook told CalMatters in an email. “We are closely assessing the ruling’s impact across​ UC’s campuses and health systems and‍ will‍ continue ⁤to press for full⁣ restoration of this essential federal support.”

how we ⁤got here

The Supreme Court’s split set of decisions ​was a⁣ response to a June lower court decision in Massachusetts. Judge William‍ G. Young⁢ found that the federal‌ government illegally ⁤ terminated the grants,in large⁤ part because the grants weren’t reviewed ⁤individually but cancelled ​en masse. He ‍also said⁤ the⁤ cancellations ⁣were racially motivated ⁤ and ordered the funding restored. The August Supreme⁢ Court decision says that ‌questions ⁣about restoring grant⁢ funding should go before the Court of Federal Claims.

“There is no reasoned‌ decision-making ⁤at all” about the ‌NIH’s grant terminations,” ‍Young wrote in his ⁢opinion expanding on his June decision. ‍Instead,the cancellations ⁢were driven by ​“sparse pseudo-reasoning,and wholly unsupported statements,” he wrote.

young also faulted the Trump administration for having no ⁤definition for what constitutes DEI.

Earlier this month Young apologized to the supreme⁢ Court for seemingly misinterpreting its​ April order in which​ the justices for the first time said federal grants must be ‍heard in the Court of Federal Claims, The new York Times reported.Young indicated he⁢ was unclear on what the high court’s April and September​ orders meant for other district judges. “I simply did not understand that orders on the ⁤emergency docket⁣ were precedent,” he said.

Other jurists said the Supreme Court’s use of the so-called “shadow ‌docket” to issue rulings with little ⁢guidance or clarification is⁢ confusing. Because ⁤of the shadow docket decisions, lower court judges⁣ “must grapple with both‍ existing precedent and interim guidance from the Supreme Court that​ appears to set that ⁣precedent aside without much explanation or consensus,” wrote one judge in a September ​opinion.

The April decision‌ commits⁢ one sentence to why the ‍Court of Federal ⁢Claims is the‍ right venue for government grant disputes.​ The five-judge majority in⁤ August in effect pointed to the april decision to support their ruling.

Neither the April nor the August⁣ Supreme Court‍ rulings “seriously engages with the scope of the Tucker Act and the Court of Federal Claims ​jurisdiction,” Marcus said. “It’s just astonishing.”

Ten of the 21 judges ​on the Court of Federal Claims were appointed by President Donald Trump,and‍ a ⁤majority⁣ were appointed by ‌Republican​ presidents,giving the Trump administration a likely advantage. However, the ‌appeals court overseeing the Court of ⁤Federal ⁤Claims contains ​a majority of judges appointed by Democrats.The U.S. Supreme Court can review decisions by the⁣ appeals‍ court.

At least ​$14 billion in grants ⁤affected‍ by ruling

Parts of the Supreme‌ Court decision “raise foundational questions”⁢ about grant ⁤termination lawsuits in federal district courts, Scott ⁣delaney, a‌ former environmental health research scientist at Harvard University, told CalMatters in an ‍email.

“That means that ‍it’ll be much⁤ harder (and⁢ possibly impractical) to sue to reinstate all NIH and⁢ NSF⁢ grants ⁤that have been⁢ terminated, though scientists may⁢ still be ‍able to ​win a court order forcing NIH or NSF to pay their universities the money‌ that ‌the government should ⁣have paid ⁣them​ under the grants,” he wrote.

Delaney ‍co-founded Grant Witness, a tool⁣ that​ scours federal datasets⁣ to tally which grants‌ the‍ federal government under Trump ​has terminated or‌ suspended.

CalMatters asked him to ‍count how many National science Foundation​ and National institutes⁢ of ⁤Health grants that campuses across‌ the country were‌ fighting to reinstate are now affected⁣ by the Supreme Court ruling. The answer?

• NIH: 4,044 grants worth $5.7 ⁤billion in unspent funds ($12.6 billion in total award value)
• NSF:‍ 1,954 grants worth $1 billion in unspent funds ($1.8 billion⁤ in estimated⁤ total⁢ award value)

Delaney said the Supreme Court ruling will likely affect billions of other dollars ⁤in grants from other agencies, such as NASA and the Environmental‍ Protection Agency, but Grant Witness‌ isn’t tracking all those yet.

Why‍ Court of Federal Claims may be a challenge for universities

Marcus said there ⁤are probably four ⁤reasons universities want to avoid the ‍Court of Federal Claims in their lawsuits  ⁢— and these are likely the same ⁣reasons why ‍the Trump⁣ administration wants them there.

First, some ⁤district courts and appeals courts are more likely to include ​judges whose judicial​ leanings are more sympathetic to the states ‍and research groups suing the Trump administration.That⁤ doesn’t mean just⁣ judges appointed ‌by Democrats. Young, the ‍district judge ‌in the National Institutes of‍ Health case,‍ was appointed by Ronald​ Reagan.

Next, the Court of Federal Claims can award ​monetary damages, but ⁤it cannot make wider rulings, such as halting an agency from continued funding ⁤terminations. Those questions would⁢ have to go before ‌a traditional district‍ court,‌ so it adds more work for plaintiffs suing the federal‍ government.

third, the ⁢Court of Federal Claims is‍ more limiting in how it allows researchers‌ to ‌join a class action suit. Basically, researchers whose grants ⁤were affected by the terminations would have to opt-in by filing paperwork to receive​ potential financial relief or have their grants restored, Marcus ⁣said.⁢ That’s different ​from what occurs in traditional federal courts,⁢ where a ‍judge can approve a set of criteria for who is ‌eligible for a class,⁤ and⁣ then⁣ all those eligible people benefit from any decision ⁤that awards the class relief.

But if a university sues, Marcus thinks the process is somewhat easier: The school⁣ would just file a ⁤complaint ​with a long list of all ​the grants or researchers covered in their suit.

Fourth,‍ Justice Ketanji ‍Brown jackson in her dissenting opinion for the Supreme Court noted other possible hardships. Requiring⁣ plaintiffs to⁤ argue before district​ courts that the rules terminating their grants are ⁤illegal and then separately getting their terminated grants ​reinstated is‌ “sending plaintiffs on a likely futile, multivenue quest for complete relief,” Jackson⁤ wrote.

Justice Amy Coney Barrett⁣ disagreed in ⁤her majority 5-4 opinion. “Vacating the guidance does not reinstate terminated grants,” she wrote, adding⁣ that ‍“two-track ‍litigation” in different courts is common.She also addressed Jackson’s criticisms head-on, writing that both district courts and‌ the ‌Court of Federal Claims can separately‍ adjudicate the relief universities or researchers seek.

Barrett and ⁣Jackson were⁢ on the ‌same side in the other 5-4 ⁤decision having​ mentioned that ​Trump’s policies to cut the grants were likely illegal.

What’s next?

Marcus cautions⁣ that the legal terrain around restoring grants remains an open question.

But based on his reading of ‍the ⁢Supreme Court cases,it is indeed quite possible​ that the Court of Federal Claims is where scientists will have to ‌try to force ⁣the restoration of any terminated funding. And the district court will continue to determine ⁤whether the​ policy ‌behind the grant⁢ cuts‍ is legal. It creates a scenario ‌in which the Court​ of Federal Claims can order funding restored, but until a district court rules on⁤ the ⁤policy justifying the grant cuts, ⁣the federal government can continue to cancel other grants ⁢or deny new ones.

But Marcus also ⁢cites at⁢ least one federal judge in ​California ​who⁣ thinks that individual‌ researchers cannot sue in ‍the Court of​ Federal Claims as they’re third parties to the ⁢contracts; the government technically sent the contracts to the⁤ university, ‍not to ⁤the researchers.‌ Under that scenario, it​ may be that individual researchers cannot sue⁣ to restore‌ their grants at all‍ and would instead need to ⁣rely on their employer to take up the legal fight.

The equation for universities suing is also nuanced,Marcus ‌said. If a ⁣university such as ⁤the​ UC sues to restore⁤ funding, there’s⁣ a possibility that a district court⁤ may rule that funding restoration would have to be heard ​in the Court of Federal⁢ Claims. However, he noted‌ that a federal judge in Massachusetts ordered the Trump administration to restore the $2.2 billion in grants⁢ it​ froze⁤ at Harvard⁤ University. that judge​ argued in part‌ that⁢ the cuts violated the First Amendment⁤ rights of the university. So, ‍even though the ⁣case is about money‍ — presumably the domain⁣ of the ‍Court of Federal ⁣claims⁢ — issues of protected speech belong in a traditional ‍district court.

“The resolution of‌ these ‌claims ​might ⁣result in money ⁣changing hands, but what is‌ fundamentally‍ at issue is a bedrock constitutional principle rather than‍ the interpretation of ‌contract terms,” the judge, Allison ⁢D. Burroughs,‌ wrote.